Jan/Feb. 99
Behind the News

Hatefulness Deserves Scrutiny, Not Legislation
By Nancy Norell

As a Contributing Editor back in the groovy ’60’s, when I was teaching Beowulf to 8th graders, one of my favorite students made an interesting statement. Aflame with passion, he said, "I HATE bigots."

Then he stopped for a minute to think. "That’s what you call an oxymoron, right? You could say I’m bigoted against bigots." Right. A smart 13-year old got it. But a lot of grownups still don’t.

Philadelphia Police Commissioner John F. Timoney was recently quoted in The Philadelphia Inquirer. "The one thing I do not tolerate is intolerance." No sensible person thinks baseless prejudice is a good thing, but should hate be against the law? Is a crime against one group of people worse than a crime against another group? Some people say yes, but this is getting into tricky territory.

Columnist Tony Snow said in "Flawed Pleadings of the New Law Lobby," "The problem with hate-crimes statutes is that they enhance public skepticism about our system of justice by eradicating the notion of equal justice before the law...it has become the twisted fate of the civil rights movement to turn itself, slowly and by degrees, into its old nemesis, Jim Crow...hate crime laws enshrine the prejudices of the ruling class. They punish some forms of bias but not others."

Did New York Senator Al D’Amato commit a hate crime when he called his rival Charles Schumer a "putzhead?" John Podhoretz said in a New York Post column, "There have been some absurd political issues in New York politics this year, but Chuck Schumer’s attempt to cast Al D’Amato as an anti-Semite because the senator called him a putzhead takes the cake...The idea that putz is a ethnic slur is preposterous. It’s an insult, not a slur."

The horrible murder of a gay young man in Wyoming has refocused attention on the issue of hate crime. Matt Shepard’s death is being used to lobby for bills introduced by Rep. Charles Schumer and Senator Ted Kennedy. The bills would expand federal jurisdiction over crimes committed against individuals because of their sexual orientation or physical disability. Support for such an expansion is understandable on an emotional level. A brutal, senseless murder arouses feelings of helplessness—we all want to do something. But emotion is a poor foundation for law. And unless a totalitarian government finds a way to reach into the minds and hearts of its people and destroy free will, no law can prevent evil behavior or the hatred that produces it.

Steve Dasbach, the Libertarian Party’s National Chairman, said, "Bigotry is despicable, but it shouldn’t be illegal. When politicians start punishing people for what they think—not for what they do—they create a chilling new category of wrongdoing: Thought crimes. Every violent crime is a hate crime, and is already covered by existing laws. Law enforcement should focus on stopping crimes in general—not punishing crimes which happen to be politically incorrect."

Dasbach said discussing violent "hate crimes" masks the real issue. "The fact is, so-called federal hate crimes don’t require violence—just unpopular opinions. In 1995, for example, 57% of the reported hate crimes were verbal. Those verbal comments may have been repugnant, or malicious or offensive—but they shouldn’t be crimes. If the First Amendment protects anything, it protects the right of Americans to hold and express opinions that are repugnant, or malicious, or offensive."

As my old boss, Senator McClure used to say, "The First Amendment was not drafted to protect popular speech."

Dasbach wondered why the Clinton administration didn’t direct its energies toward apprehending and punishing all violent criminals, without regard for their motivation. "After all," he said, "law enforcement’s job is to prosecute criminals, not to improve their character."

Dennis Shepard, Matt’s father, quoted in a column by Stephen Chapman said, "Don’t rush into just passing all kinds of new hate-crimes laws. Be very careful of any changes, and be sure you’re not taking away the rights of others in the process to race to this."

Although there wasn’t time left in the 105th Congress to make debate and passage of the Schumer-Kennedy bill possible, President Clinton has expressed his support for expanding federal hate crime law. in the future.

Senate Judiciary Committee Chairman Orrin Hatch (R-UT) said he would hold hearings on the bill in 1999 "Sometimes you may need something like that so everybody in this country realizes there’s a penalty, that there’s a punishment that comes from being vicious and vindictive against people who you might not agree with," he said.

How crimes of attitude are the business of the federal government is a good question. Existing federal hate crime law rests on two things. First, the victim must be a member of a selected group. Second, the crime must occur because the victim was engaging in a federally-protected activity such as voting, going to school or working.

Just like federal firearms law, hate crime law has a tenuous link to federal authority at best. Federal firearms law deals with firearms that have been in interstate commerce. The federal hate crime law is linked with actual physical crime that denies the victim his civil rights. More sweeping hate crime laws have been enacted in a number of states. Some states have none at all. Some states include sexual orientation, gender or disability as a protected category.

Many are skeptical of motives for pushing hate crime laws. Supporters of these laws like to accuse anyone who opposes them as a racist or homophobe. But this is a specious argument. If you are a shooter, you have probably gotten a similar attack—anti-gunners lump you with those who use firearms to rob, murder or rape. Indeed, if you are in Washington DC, or Seattle, or some similar big city, you probably keep your enjoyment of the shooting sports, or your belief in the right to self-defense to yourself—unless you enjoy arguments and are not bothered by being called names.

Of course, the First Amendment gives them the right to express those views.

One of the beauties of US law is that, at least in theory, it applies to everyone equally. There are no protected groups or individuals. A President who perjures himself is a perjurer. There should be no group that can be victimized with impunity. Matt Shepherd’s homosexuality made him more vulnerable, but there is little doubt in anyone’s mind that if the thugs accused of his murder are found guilty, they will probably pay with their own lives, since Wyoming allows the death penalty.

The notion that Matt Shepherd was murdered because the Religious Right holds homosexuality to be wrong is nonsense. It would be hard to find any group that has been more thoroughly misrepresented and demonized than conservative Christians. At an "anti-hate" rally held by the Queer Student Association at the University of Idaho, philosophy professor Nicholas Gier criticized the religious right, pointing out that Shepard was left for dead, tied to a fence post with arms outstretched. "I would call that a crucifixion and I would also say to that element of the religious right that Matthew Shepard died for your homophobic sins."

Mona Charen, in a column "Cynical use of the tragedy at Laramie" said, "...baseless hatred is forbidden to Christians and Jews. On the other hand, there are certainly a good many gay activists who hate the Christian right—and nothing in their credo seems to forbid indulging that hatred luxuriously."

Chris Freeman of the Atlanta-based Center for Democratic Renewal told The Atlanta Constitution, "...anti-gay rhetoric ‘demonizes’ homosexuals. Some right-wing organizations advocate killing all gays and lesbians, and the Rev. Pat Robertson recently suggested a hurricane might wipe out Orlando, FL for its gay-friendly activities."

The atrocious behavior of a tiny number of religious loons plays right into the hands of those who want to paint anyone who thinks homosexuality is wrong as a gay-bashing bigot. A reverend who picketed the young man’s funeral with hateful placards did grievous damage to all religious people, even though he was acting against the advice of the Family Research Council(FRC). This conservative organization views homosexuality as a sin, but FRC’s Director of Cultural Studies Robert H. Knight urged the picketer to restrain himself, saying "The Shepard family deserves to be left alone in their time of grief. Don’t let this become a circus. Don’t use Matt as part of an agenda. ... If self-identified Christians harass and picket mourners at Mr. Shepard’s funeral, then homosexual activists in the media will use the imagery to smear all Christians. [We] have asked his group to stop letting themselves be used by the media to crudely caricature Christians."

There is another element in Shepard’s murder. Without blaming the victim, every prudent person has a certain responsibility to avoid obviously dangerous situations. If you go into a tough bar in a bad part of town, get drunk, flash a big roll of money around and make a snippy comment to a table full of outlaw bikers, you may very well get robbed or beaten up. Yes, that’s a crime, and you should have right to do all those things, but let’s be realistic. It’s obvious that Shepard was involved in risky behavior. There is more than one lesson in this tragedy. There are bad, evil people in the world, and if you are a gentle soul, use a bit of common sense.

Camille Paglia, in her Salon column, "Online advice for the culturally disgruntled," pointed out, "Hate-crimes legislation—which I have consistently opposed as a fascist intrusion into constitutionally protected, dissident thought—would not have protected Matthew Shepard, whose assailants were low-rent outlaws and whom the bombastic excesses of gay activism lulled into a false sense of security about the world. No law will ever fully protect gay men who pick up strangers." She continued, "I have warned again and again that when ‘offensive’ speech is silenced by well-meaning, liberal authoritarians (as it was in the campus speech codes early this decade), any argument is forced underground and eventually emerges in far more fanatical and uncontrollable form."

By setting up acceptable and unacceptable belief systems, we are taking another step down an Orwellian road, into a land where an elite minority censors every utterance, and politically correct groups receive special protections denied to the unwashed masses.